Musgrove v. Perkins

Field J., delivered the opinion of the Court—Terry, C. J., concurring. Vfhen this cause was called for trial, the counsel of the plaintiffs moved for a continuance, upon his affidavit that he had advised his clients not to prepare for the trial until an appeal from an order dissolving the injunction in the cause had been heard and determined by the Supreme Court; that, acting upon such advice, the necessary preparations had not been made, and could not then be made, in consequence of the absence of a material witness, whose presence or deposition would have been otherwise obtained. The Court denied a continuance, and the plaintiffs refusing to proceed with the trial, the cause was dismissed.

The granting or refusing a continuance rests in the sound discretion of the Court below; and its ruling will not be revised, except for the most cogent reasons. The Court below is apprised of all the circumstances of the case, and the previous proceedings, and is, therefore, better atjle to decide upon the propriety of granting the application than an Appellate Court, and when it exercises a reasonable and not an arbitrary discretion, its action will not be disturbed.

The mistaken advice of counsel to his clients, not to prepare for the trial, was no ground for a continuance. It was based upon an erroneous impression that the appeal from the order dissolving the injunction operated as a stay of proceedings in the cause.

Mistakes in matters of law are frequently made by counsel, and if parties could be relieved by simple allegations of having, acted, or neglected to act, in consequence of advice predicated upon such mistakes, there would be no end of the cases in which such excuses would be offered.

Judgment affirmed.